JURIST Guest Columnist S. David Mitchell of the University of Missouri-Columbia School of Law says that in light of the disproportionate and disparate effects of felon exclusion laws on individuals and their communities, ex-felons should have their rights restored automatically when they have completed their sentences...
hat will Roger Goodell do?" National pundits recently pondered this question, debating the fate of Michael Vick's career as a quarterback in the National Football League. The appropriate question should have been, "As a convicted felon, will Vick lose any fundamental rights? And, "What is the process required to get those rights restored?"
In Virginia, Vick will lose the right to vote; serve on a jury; or possess a firearm, to name a few. After he is unconditionally discharged, he will wait an additional five years before submitting a restoration of rights application to the Governor, who has the sole discretion to grant or deny his application.
Vick's crimes were heinous, but the loss of fundamental rights is disproportionate to the offense. Ex-felons should have their civil rights restored automatically following their unconditional discharge from the criminal justice system. The statutory denial of rights to ex-felons after the completion of their sentence infringes upon their citizenship and the collective citizenship of the communities to which they eventually return.
Following a felony conviction, an offender is subject not only to the criminal penalty associated with their offense but also "civil disabilities" that vary by jurisdiction. These disabilities, or felon exclusion laws, deprive ex-felons of a host of rights, most notably the right to vote. Other rights that ex-felons may lose are the right to serve on a jury, to hold public office, or to own a firearm. Some jurisdictions deny ex-felons the opportunity to apply for social welfare benefits; and, others allow a felony conviction to be used as a basis to deny either certain occupational licenses or employment in the public or private sector. A deprivation of any one of these substantive rights denies the ex-felon from becoming a full citizen, especially when viewed through the lens of T.H. Marshall's tripartite structure of citizenship.
According to Marshall, citizenship consists of three interdependent parts the political, the legal, and the social. The withholding of a right associated with any one these parts, such as the right to vote, deprives the ex-felon of full citizenship. No conviction should carry such a price, for "[c]itizenship is not a license that expires upon misbehavior." Trop v. Dulles Secretary of State, et al., 356 U.S. 86, 92 (1957). Ex-felons are relegated to second-class citizenship because of the impact that felon exclusion laws have on them and their lives.
The impact of the deprivations associated with felon exclusion laws is clear. When ex-felons are denied the right to vote, they are effectively silenced at the ballot box and are unable to choose political representation. When a felony conviction is used as a determining factor to deny employment, ex-felons face economic challenges. Felon exclusion laws focus on the status of the individual and not the offense committed. Thus, all persons convicted of a felony will lose the same set of rights predetermined by a given jurisdiction. Moreover, if an ex-felon moves, other jurisdictions often will not restore rights to an ex-felon unless the rights have been previously restored in the jurisdiction where the crime occurred. Consequently, the legal badge of dishonor that ex-felons wear as a result of their conviction follows them. More importantly, ex-felons are legally marginalized. While the laws have a direct impact on the lives of individual ex-felons, the laws collaterally impact the communities of which ex-felons are members.
With the majority of ex-felons coming from low socio-economic communities or communities of color, these communities bear the disproportionate impact of felon exclusion laws. Felon exclusion laws deny the individual convicted felons rights and privileges and the aggregation of those affected individuals in specific communities directly impacts the political power, economic viability, and social stability of the larger communities to which they belong. When ex-felons are denied the right to vote, communities lose their voting power. Thus, the exclusion of these individuals is an additional deprivation that these communities must bear. Laws that prohibit ex-felons from exercising rights afforded others make them a dependent or "invisible" population; individuals released into the community who are denied the status of full citizens become "invisible" men, and increasingly "invisible" women.
Felon exclusion laws disqualify from jury service a disproportionate number of individuals from lower socio-economic groups and from racial minorities. Consequently, members of those groups who are on trial are often denied the possibility of being tried by a jury of their peers. While the United States Supreme Court has stated that proportional representation is not necessary to create a fair jury, the lack of peers in a potential pool of jurors creates an unfair bias against a defendant; moreover, no quantity of protection during the voir dire process can alleviate that inequality. Ex-felons should not have a right to sit on a jury simply because they are ex-felons but because they have paid their debt to society and should be reinstated as full citizens. Communities with a large number of convicted felons are at a significant disadvantage because many of their members are excluded from political, civil, and social participation.
While a legitimate argument may exist for withholding the rights of convicted felons who remain under the control of the criminal justice system, there is no legitimate purpose for denying the automatic restoration of rights to unconditionally discharged ex-felons, save one - retribution. To require an ex-felon to wait an additional period of time after having completed their sentence to regain rights is contrary to the fundamental tenet of criminal justice paying one's debt to society. To deny the re-acquisition of these rights not only denies the individual membership but also impacts the collective membership of their communities. Membership in the United States as expressed through the possession of the right to vote has been jealously guarded since the nation's founding, requiring constitutional amendments in conjunction with legislative acts for all formerly excluded groups to be granted the right to vote, and be recognized as full citizens. Obstacles to full citizenship, such as poll taxes, literacy tests, grandfather clauses, and whites-only primaries operated to exclude not only African-Americans but other underrepresented groups from full citizenship. While other forms of disenfranchisement and exclusionary practices have been eradicated, felon exclusion laws still persist.
The time has come to for ex-felons to have their rights restored automatically when they have completed their sentences, thus contributing to the political, civil and social viability of disproportionately impacted communities. S. David Mitchell is a professor of law at the University of Missouri-Columbia